Citation Nr: 1537074
Decision Date: 08/31/15 Archive Date: 09/04/15
DOCKET NO. 12-12 983 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California
THE ISSUES
1. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease (DDD) of the thoracolumbar spine.
2. Entitlement to a total disability evaluation based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: California Department of Veterans Affairs
ATTORNEY FOR THE BOARD
S. B. Mays, Counsel
INTRODUCTION
The Veteran served on active duty from September 1975 to June 1979.
This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.
On his substantive appeal received in May 2012, the Veteran requested a hearing before a Veterans Law Judge. However, the Veteran subsequently withdrew his hearing request. See Veteran's response received in September 2014; December 2014 Report of General Information.
In a June 2013 rating decision, the RO continued the 20 percent rating for the thoracolumbar spine disability; granted service connection for associated radiculopathy of the left lower extremity, assigning a 20 percent rating, effective November 18, 2011; and denied entitlement to a total disability rating based on individual unemployability (TDIU).
The Board recognizes that potential entitlement to TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the RO denied entitlement to a TDIU in the June 2013 rating decision, the Board finds it is part and parcel of his back rating and therefore before it.
FINDINGS OF FACT
1. The Veteran's service-connected thoracolumbar spine disability is primarily productive of a chronic lumbar strain, multilevel DDD, and the functional equivalent of forward flexion to 30 degrees or less, when also considering the objective evidence of additional limitation in range of motion after repetitive-use testing, pain on motion, weakened movement, excess fatigability interference with sitting, standing, and/or weight bearing, and a left-sided antalgic gait.
2. There is no evidence of unfavorable ankylosis of the entire thoracolumbar spine, incapacitating episodes of DDD, radiculopathy of the right lower extremity, or associated neurological impairment in the bowel or bladder. Service connection is already in effect for radiculopathy of the left lower extremity.
3. The Veteran is unable to secure or maintain substantially gainful employment due to his service connected disabilities.
CONCLUSIONS OF LAW
1. The criteria are met for a disability rating of 40 percent, but not higher, for service- connected DDD of the thoracolumbar spine. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5242, 5243 (2014); Burton v. Shinseki, 25 Vet. App. 1 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995).
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2. The criteria for a total disability evaluation based on individual unemployability have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Introductory Matters
In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").
The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.
II. VA's Duties to Notify and Assist
As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).
The RO provided a notice letter to the Veteran in October 2009, which apprised the Veteran of the type of evidence and information needed to substantiate his claim, and of his and VA's respective responsibilities in obtaining this supporting evidence. The RO also advised him as to how disability ratings and effective dates are assigned. Additional VCAA letters were sent to the Veteran in November 2011 and March 2012, and the RO most recently readjudicated the case in a February 2015 supplemental statement of the case (SSOC).
VA also met its duty to assist the Veteran in the development of the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Veteran's record includes his service treatment records (STRs), post-service VA treatment records, records provided by Social Security Administration (SSA), evidence from Kaiser Permanente and Department of Labor, and his contentions in support of the claim. The Veteran was afforded VA compensation examinations of the spine in November 2009, November 2011, and May 2013, and these examinations are adequate for rating purposes.
The Board recognizes that although the Veteran did not indicate that he is receiving benefits from the SSA, he did indicate that he filed a claim with SSA. In March 2012, the RO requested any of the Veteran's records from SSA; however, according to a March 2012 internal email, it was noted that SSA denied the Veteran's claim and that he is not currently receiving benefits. A subsequent internal note dated in April 2012 indicates that "CD of records from SSA received, please print out records." Thereafter, in July 2013, a photocopy of an envelope bearing the notation "SSA enclosed" was associated with the VBMS file, and this envelope consists only of a Disability Determination and Transmittal Sheet reflecting that the Veteran filed a claim with SSA in February 2011, but there is no indication that disability was awarded. As there is no evidence or suggestion that the Veteran is actually receiving disability benefits from SSA, a remand is not necessary for any further efforts to obtain any such records.
The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. He has received all essential notice and has had a meaningful opportunity to participate effectively in the development of this claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). VA's duties to notify and assist him with this appeal have been satisfied.
III. Pertinent Laws and Regulations Governing Increased Rating Claims
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4.
Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155 (West 2014). Evaluation of a service-connected disability requires a review of the Veteran's entire medical history regarding that disability. 38 C.F.R. §§ 4.1, 4.2 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3.
If there is a question as to which rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014).
Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008).
The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
IV. Analysis
The Veteran seeks a disability rating higher than 20 percent for his service- connected thoracolumbar spine disability.
Disabilities of the spine are evaluated under the General Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a. Intervertebral disc disease can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Id. IVDS is also referred to as degenerative disc disease or DDD.
The RO assigned the 20 percent rating for the Veteran's service-connected thoracolumbar spine disability pursuant to DC 5243 of the IVDS Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a (2014).
Under the IVDS Formula, incapacitating episodes having a total duration of at least six weeks during the past 12 months warrants a 60 percent rating. For incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is warranted. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243 (2014).
Alternatively, under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id.
Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. Id. Note (1).
Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995).
In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206.
Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The United States Court of Appeals for Veterans' Claims also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40.
Turning now to the evidence in this case, the Veteran submitted an increased rating claim for his thoracolumbar spine disability in August 2009.
In November 2009, he was provided a VA spine examination for compensation purposes. The examiner noted that the Veteran's gait and posture were normal. There was no tenderness upon palpation of the spine. No paraspinal muscle spasms were noted. Curvature of the spine was normal. There was no kyphosis or scoliosis. Forward flexion of the thoracolumbar spine was to 90 degrees, and extension was to 30 degrees. Bilateral lateral flexion and lateral rotation was to 30 degrees. There was no decrease in range of motion due to pain upon repetitive-use testing. Neurological (sensory, motor, reflex) examination of the lower extremities was normal. Lasegue sign was positive in the left leg. X-rays showed evidence of DDD at T-11 and T-12, and at L3-L4, L4-5, and L5-S1. Diagnosis was chronic low back pain with flare-ups due to DDD of the thoracolumbar spine.
In November 2011, the Veteran was afforded an additional VA spine examination for compensation purposes. He reported continued low back pain with stiffness, as well as weakness, spasms, and lack of endurance. On examination, forward flexion of the thoracolumbar spine was to 50 degrees with pain beginning at 30 degrees. Extension was to 30 degrees or greater with pain beginning at 20 degrees. Bilateral lateral flexion and lateral rotation was to 30 degrees with no objective evidence of pain. Upon repetitive-use testing, forward flexion was to 40 degrees; extension was to 20 degrees; and left lateral flexion was to 20 degrees. Right lateral flexion as well as bilateral lateral rotation remained the same during repetitive-use testing. In terms of functional impairment, the VA examiner noted that the Veteran had additional limitation in range of motion, noting that the contributing factors were less movement than usual, weakened movement, excess fatigability, and pain on movement. There was tenderness to palpation over the left paraspinal muscles of the mid-lumbar spine with no spasms, swelling, or redness. There was no guarding. Neurological examination (motor, sensory, and reflexes) of the right lower extremity was within normal limits. There was radiculopathy in the left lower extremity, with moderate pain. There was mild pain in the right leg; radiculopathy was not shown. The examiner indicated that the Veteran had had no incapacitating episodes of DDD in the past 12 months. The Veteran used no assistive devices on account of his back disability. Arthritis in the spine was not documented and vertebral fracture was not present. MRI of the thoracolumbar spine showed multilevel DDD.
The Veteran most recently underwent a VA examination of the spine for compensation purposes in May 2013. He reported severe flare-ups of pain in his low back at least 3-4 times a year. He also reported difficulty with all activities of daily living due to his back problems. He reported back pain with prolonged sitting and the inability to lift items weighing over 10 pounds. On examination, forward flexion of the thoracolumbar spine was to 50 degrees and extension was to 10 degrees, with pain at endpoints. Right lateral flexion was to 20 degrees and left lateral flexion to 25 degrees. Bilateral lateral rotation was to 25 degrees. Upon repetitive-use testing, all ranges of motion remained the same. There was no additional limitation in range of motion following repetitive-use testing. Functional impairment of the thoracolumbar spine includes less movement than normal, pain on movement, interference with sitting, standing, and/or weight bearing, and a left-sided antalgic gait. There was tenderness to palpation of the joints or soft tissues of the lumbar spine. Neurological testing of the lower extremities was normal, with the exception of decreased sensation in the foot and toes on the left, as well as a positive straight leg testing on the left. There were no signs or symptoms of radiculopathy in the right leg. There was mild radiculopathy in the left leg. DDD was present and there were no incapacitating episodes in the past year. It was noted that the Veteran occasionally used a cane. Diagnosis was DDD of the spine with lumbar radiculopathy and lumbosacral strain.
As set for the above, the Veteran exhibited forward flexion of the thoracolumbar spine to no less than 50 degrees on range of motion testing during the appeal period. Accordingly, range of motion testing did not result in forward flexion to 30 degrees or less. Moreover, favorable ankylosis of the entire thoracolumbar spine is not shown.
Nonetheless, the Board recognizes the objective evidence of additional loss in range of motion, as evidenced by a decrease of 10 degrees in both extension and flexion after repetitive- use testing during the November 2011 VA examination. Although there was no additional loss in range of motion during the May 2013 examination, the medical examiner determined that the Veteran has functional loss in terms of having less movement than normal in his spine, pain on movement, interference with sitting, standing, and/or weight bearing, and a left-sided antalgic gait. Moreover, the Veteran has consistently reported having flare-ups of back pain and difficulty performing his activities of daily living. Resolving all doubt in his favor and in consideration of this functional impairment and the holdings of Deluca, Mitchell, and Burton, supra, the criteria for a higher rating of 40 percent are approximated under DC 5242. See 38 C.F.R. §§ 4.40, 4.45, 4.59.
However, there is no evidence of ankylosis of the spine, let alone unfavorable ankylosis of the entire thoracolumbar spine, to warrant a rating higher than 40 percent. Moreover, the 40 percent rating assigned herein represents the maximum rating for limitation of motion. Therefore, further DeLuca analysis is not required. See Johnston v. Brown, 10 Vet. App. 80 (1997) (holding that 38 C.F.R. § 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect).
In addition, a rating higher than 40 percent is not warranted under the IVDS Formula because the competent evidence does not show that the Veteran's disabililty is productive of incapacitating episodes having a total duration of at least six weeks per year. On his substantive appeal, the Veteran stated that he was incapacitated for up to 6 weeks in 2011 on account of his back disability. For reference, VA regulations define an incapacitating episode as a period of acute signs and symptoms due to disc disease that requires bed rest prescribed by a physician and treatment by a physician. Id. In this case, despite the Veteran's statements, there is no indication in the record that he has been prescribed bed rest and treatment by a physician for his spine disability. Notably, both the November 2011 examiner and the May 2013 examiner affirmatively indicated that the Veteran had no periods of incapacitation, as defined by regulation, due to his thoracolumbar spine disability in the past twelve months.
VA regulations require that consideration not only be given to the orthopedic manifestations but to any associated objective neurologic abnormalities, which are to be evaluated separately under the appropriate DC.
Radiculopathy of the lower extremities is rated based on the degree of paralysis of the sciatic nerve under 38 C.F.R. § 4.124a, DC 8520 (2014). Under this DC, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, which contemplates foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520.
In this case, a separate 10 percent rating is already in effect for radiculopathy of the left lower extremity as a manifestation of the DDD of the thoracolumbar spine. There is a notation of mild pain in the right leg on the 2013 VA examination report. Nonetheless, there is no evidence of any radicular pain in the right leg or signs or symptoms of radiculopathy in the right lower extremity. Lastly, there is no evidence of any related bowel or bladder impairment.
Based on the foregoing, the Board concludes that a higher rating of 40 percent, but not higher, is warranted for the Veteran's thoracolumbar spine disability.
TDIU
The Veteran is seeking entitlement to a total disability rating, alleging that he is unable to work due to his service-connected disabilities, mainly focused on his back.
Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2014). Here, the Veteran meets this criteria.
The veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.
The Veteran is now currently service connected for DDD, currently rated as 40 percent disabling; depressive disorder, currently rated as 30 percent disabling and left lower extremity radiculopathy, currently rated as 20 percent disabling. The Veteran's combined disability rating is 70 percent. The record indicates that the Veteran was last gainfully employed in 2008, that he has completed one year of college, and that he has occupational experience as a mail processor, carpenter and construction worker.
A VA medical opinion has concluded that the Veteran's service connected back would not preclude substantially gainful employment. However, this determination is an adjudicatory one, not a medical question. Moreover, it does not appear the examination considered the impact of the Veteran's service-connected depression and explicitly noted he was not considering the Veteran's training and education.
Having reviewed all of the evidence, including the fact that the Veteran has primarily worked as a carpenter and construction worker over the last 20 years, without significant post-high school education, the Board finds that the combined effects of the Veteran's service-connected disabilities at least as likely as not render him unable to secure or maintain substantially gainful employment. Accordingly, entitlement to TDIU is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2014).
V. Extraschedular Consideration
In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
Here, the evidence does not show such an exceptional disability picture that the available schedular rating for the service-connected thoracolumbar spine disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's spine disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.
His service-connected thoracolumbar spine disability is primarily manifested by DDD, the functional equivalent of forward flexion to 30 degrees or less considering additional loss of in range of motion and other functional limitations, and associated radiculopathy of the left lower extremity. Notably, these signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.71a, DCs 5242, 5243; DeLuca, Mitchell, supra.
There is no evidence in the record of symptoms of and/or impairment due to his thoracolumbar spine disability not encompassed by the criteria for the schedular rating assigned. Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008).
Lastly, the Board notes that, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extraschedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities.
In this case, the Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria.
ORDER
A disability rating of 40 percent, but not higher, for DDD of the thoracolumbar spine is granted, subject to the laws and regulations governing monetary benefits.
Entitlement to TDIU is granted.
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BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs